Delusions in a nutshell

Thursday, 01 April 2010
Challenges to a will on the basis that the deceased was deluded are on the rise.

When assessing testamentary capacity, three recent cases1 suggest that challenges to a will on the basis that the deceased was deluded are on the rise. Practitioners therefore need to know what to look for when interviewing those preparing to make a will and when and how a challenge to the will can be advanced.

What is a delusion?

There is a lengthy World Health Organization definition of delusion, but in essence it is a false belief than cannot be dispelled by rational explanation. Delusions tend to be long term and stable, frequently first manifesting themselves in early life but in fact can arise later in life – and must necessarily do so in relation to one’s children. It is useful to contrast a confused state with a delusional one. A patient may easily become confused in hospital as to why they are there or as to what is wrong with them, but this may pass as their health improves and they are discharged. Essentially it is short term and may be associated with physical illness, medication and so on. In contrast, in the case of a delusion the ‘patient’ may have no difficulty whatsoever in conducting a seemingly normal life and yet may at the same time and over a long period, believe that his or her spouse is having affairs, or that he or she is occasionally visited by deceased relatives and suchlike.

Operative delusions

Even though the testator suffers from delusions, those delusions may not be operative in the sense of adversely affecting the ability to make a will. In Banks v Goodfellow2 the testator thought (i) he was pursued by spirits and (ii) a man long dead was molesting him; yet neither was operative as to will disposition which slighted his niece.

Visibility

A major problem with delusions is that sufferers may ‘present’ as perfectly normal. They may be rational of speech as well as normal in appearance and yet a mention of yoghurt or a particular child may set them off. Branislav Kostic in Kostic v Chaplin & Ors may have appeared perfectly rational in conversation on everyday topics and run a successful business concern. However, if (as his solicitor did) one became aware of some of his observations on his son or international conspiracies,3 one may well have suspected some serious mental disturbance.

Correspondingly conducting a Clifton test or mini mental examination may not detect a delusion, nor may a solicitor or even a psychologist, unless primed as to what to look for. That said an ‘inofficious’ will4 (i.e. one that disregards the claims of those of near relation or normal natural affection) must sound warning bells.

The golden rule

If in doubt about capacity a solicitor should always have the client assessed by his or her GP, however this does not guarantee the court will accept there was capacity.5 In Ritchie v Joslin & Ors neither solicitor nor GP had any doubts about capacity, they knew the old lady and family well and, in essential detail, all the alleged delusions, and yet she was found to be deluded and the will set aside.

Other evidence

Attesting witnesses are usually the most important witnesses at time of challenge6 , but if not they are familiar with the testator (as in Kostic) they may be of little value in a delusions case.

In Blackman v Man7 the Court warned against placing too much reliance on experts who were basing their views not on having met the testator, but instead on inferences from factual evidence in medical notes or witness statements. However, in reality such reliance may prove crucial, as in Kostic and Ritchie.

Onus of proof

This is probably dead in the water after Sharpe v Adams,8 which included: ‘Cases are only decided on the burden of proof if, exceptionally, the court is unable to reach an evaluative decision on the evidence taken as a whole.’ Which one can translate as: ‘only wimps resort to the burden of proof’, so one cannot see many judges wishing to be tarred by that brush.

Proof of capacity

It is not necessary to prove that the testator actually understood matters at the time of execution of the will, but rather that they had the capacity to understand them at the time,9 which is a subtle but important distinction.

A quantitative test?

On a general plane the level of capacity to make any gift is relative to the importance of what is being given away – Re Beaney.10 Since one does not need perfect capacity to make a will can one also make a will, when not perfectly free of delusions? From Banks v Goodfellow11 there are two points made: (i) the testator can be deluded provided the delusion does not affect the particular disposition, and (ii) if the delusion is ‘calculated to exercise any influence’ then capacity is lost. Again the second test is not whether it did influence, but whether it might have any influence. This suggests that no delusional effects whatsoever are permitted.12

Is irrationality the test?

In other words is the irrational exclusion from a will of the natural objects of the testator’s bounty evidence of a delusion? This would set the evidential bar very low and might be thought to be the result of Couwenbergh v Valkova.13 In fact, although the testatrix did suffer from a false and irrational belief, such that the objects of her bounty were beyond her capacity to review them, the Judge did not describe this as a delusion and it was not assessed as a condition from which she could not be released by rational argument. So akin to confusion it might remove capacity, but equally it might be a short term affliction or poisoning of the mind.

The borderline case

The borderline case presents particular difficulty in advising, especially as to costs (as below). Realistically Kostic appears a fairly obvious case from a brief perusal of the Judgement and the writer’s description of the decision by the CPA to fight the case as a punt14 might be agreed with by many, hence the costs award. Ritchie is a much better guide to borderline decisions and the difficulties faced by the charity or other party seeking to uphold the will. In that case –and this clearly impressed the Judge when it came to costs15 – the charity, which was otherwise to benefit from most of the estate, had had no contact with the testatrix during her lifetime (and hence had no knowledge of its own about her), both her experienced solicitor and GP said she had capacity, the will was made eight years before her death and there was no independent (i.e. non family) evidence that she did not have capacity. In addition the delusions relied on that fact that:

  1. Her children never came near her.
  2. Her children did not need her money.

This raised a complex picture that was shifting even during the trial. For instance, was (1) largely a figure of speech meaning that they might visit but not as frequently as she liked? It was a comment she had made to both the solicitor and the GP, who had a good idea of the true position, which they took into account when making their assessment of her. As to (2), in large measure this was in fact an accurate assessment of the position.

Contesting claims

As to evidential sources, we have:

  1. The solicitor – usually a reliable voter in the capacity lobby,
  2. the GP,
  3. attesting witnesses,
  4. friends, relatives, local religious leaders (often overlooked nowadays), carers etc.,
  5. health records, and
  6. experts.

Main issues to address are usually:

  1. Size of estate,
  2. costs risks,
  3. evidence,
  4. merits,
  5. power of trustees to compromise,16 and
  6. offers of settlement (inc.Part 36 and tactical offers).

Trustees have to consider a Beddoes Application in appropriate circumstances. A possibly very useful course is to release the discretion of the trustees as to whether to seek to uphold the will to the Court.17

Costs

It is notorious that the allure of ‘costs from the estate’ has lead many litigants into probate litigation with false hopes as to costs awards, which have been rudely dashed. Contrary to common perception (even in the profession), the usual rule of costs following the event is only disapplied in probate cases where:18

  1. The origin of the action is the fault of the testator, then costs should come out of the estate, or
  2. if the circumstances warrant an investigation of the capacity of the testator or similar, then there should be no order as to costs.

The costs decisions in Kostic19 and Ritchie20 illustrate:

  1. That a part 36 Offer may appear a valuable weapon in a delusions case, but because they are ‘all or nothing’ cases, and also because the starting point for a probate case is not the same as in ordinary litigation (costs may not follow the event anyway) they are more easily ignored by the Court as relevant to its costs decision.
  2. The ‘commercial decision’ basis of approaching costs in Kostic must probably be confined to cases as extreme as that one.

Another tack for a party concerned about costs risks is simply to give notice to cross examine,21 in which circumstance the usual order is no order as to costs. However:

  1. It does not apply to those alleging fraud or undue influence or where the party concerned had no reasonable grounds for opposing the will.
  2. The party cannot (or should not) raise a positive case, and so should not be permitted to call their own medical expert.

Conclusion

This is now a topic which will have to be on the forefront of practitioner’s thoughts, especially where the testator proposes to (or has) dispose(d) of his or her estate outside the natural objects of their bounty – the question ‘why’ looms large.

  • 1Sharpe v Adams [2006] WTLR 1059; Kostic v Chaplin & Ors [2007] EWHC 2298 & Ritchie v Joslin & Ors [2009] EWHC 709.
  • 2 (1870) LR 5 QB 549.
  • 3See paragraph 45 of the Judgement.
  • 4From Banks v Goodfellow ibid.
  • 5Sharpe v Adams.
  • 6Williams on Wills 9th Ed. Paragraph [4.20].
  • 7 [2008] WTLR 389,408E.
  • 8At page 1081H (paragraph [74].
  • 9 Hoff v Atherton[2005] WTLR 99, 109D.
  • 10 [1978] 1 WLR 770.
  • 11Page 565.
  • 12But perhaps many people suffer mild delusions –since the chances of winning the lottery may be akin to being run down by a bus, yet people prefer to play rather than buy high visibility coats.
  • 13[2008]EWHC 2451.
  • 14Ritchie(costs) [[2009] WTLR 885 paragraph 11.
  • 15 Ibid paragraph 38.
  • 16Section 15 of the Trustee Act 1925.
  • 17In Re Earl of Strafford [1980] Ch 28.
  • 18See the review in Kostic at [2008] WTLR 655, 657D-663H.
  • 19 [2008] WTLR 655.
  • 20See footnote 14 above.
  • 21Tristram & Coote’s Probate Practice 30th Ed. Paragraph 40.17.
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Malcolm Warner

Malcolm Warner is a Barrister practising at Guildhall Chambers in Bristol, UK.

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